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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

TIME WARNER CABLE,              )
     Complainant                )
                                )
     v.                         )
                                )
RCN-BeCoCom, L.L.C.,            )
     Defendant                  )
                                )
Open Video System Complaint     )
                                 

                  MEMORANDUM OPINION AND ORDER

Adopted:  April 27, 1998                Released:  April 28, 1998

By the Acting Chief, Cable Services Bureau:

I.   INTRODUCTION

     1.   Time Warner Cable ("Time Warner"), has filed a complaint alleging that RCN-BeCoCom,
L.L.C. ("RCN"), an open video system operator, violated Section 653 of the Communications Act of 1934 and
the Commission's regulations by refusing to provide it with information pertaining to RCN's open video system
as required by Section 76.1503(b)(2) of the Commission's rules.  Time Warner requests that we order RCN
to furnish it with the requested information, and should Time Warner seek carriage on RCN's open video
system, that we order RCN to provide it with channel capacity in a non-discriminatory manner.  RCN filed
an answer opposing Time Warner's complaint and Time Warner filed a reply.  After examining the record,
we conclude that RCN improperly withheld information to which Time Warner is entitled.

II.  BACKGROUND

     2.   In the Telecommunications Act of 1996 ("1996 Act"), Congress established four means by
which common carriers may enter the video programming marketplace:  (1) radio-based systems; (2) common
carriage of video traffic; (3) cable systems; and (4) open video systems.  The Conference Report for the 1996
Act "recognize[d] that telephone companies need to be able to choose from among multiple video entry options
to encourage entry, and so systems under this section [shall be] allowed to tailor services to meet the unique
competitive and consumer needs of individual markets."  In rulemakings implementing the open video system
regulations, the Commission concluded that Congress did not intend to restrict open video system service to
telephone companies alone, and permitted non-local exchange carriers and cable operators to operate, and to
obtain carriage on open video systems where "consistent with the public interest, convenience, and necessity.
. . ."  The Commission stated that the open video system model "can provide the competitive benefits that
Congress sought to achieve: market entry by new service providers, enhanced competition, streamlined
regulation, investment in infrastructure and technology, diversity of programming choices and increased
consumer choice."

     3.   Although subject to streamlined regulation as compared to their cable counterparts (e.g., no
requirement to obtain a franchise from local authorities), open video system operators are not without clearly
defined obligations and responsibilities, such as offering up to two-thirds of their channel capacity to
unaffiliated programmers.  Open video system operators are also required to provide certain information to
prospective programmers.  Open video system operators may not unreasonably nor unjustly discriminate
against unaffiliated programming providers, and must provide just and reasonable rates, terms, and conditions
for carriage to all eligible programming providers that seek carriage.  The Commission determined that "by
requiring open video system operators to provide carriage opportunities for video programming providers . .
. Congress sought to foster competition by encouraging multiple programming sources on open video
systems." 

      4.  Commission regulations provide for the adjudication of open video system complaints.  Prior
to filing a complaint with the Commission, an aggrieved party must notify the potential defendant of its intent
to file a complaint with the Commission, sufficiently detail the basis of its claim, and provide the potential
defendant with a minimum of ten days to respond to the allegations set forth in the notice.  After an open
video system complaint is filed, the Commission must render a decision within one hundred and eighty days
of the filing date of the complaint.  Upon completion of any adjudicatory proceeding, the Commission may,
as warranted, order carriage, award damages, or impose sanctions.

III. DISCUSSION

     5.   Time Warner asserts that it is entitled to carriage as a programming provider on RCN's open
video system; that it is entitled to open video system information; and that the Commission should revoke
RCN's open video system certification.  We address each argument below.

          A.   Time Warner's Video Programming Provider Status

     6.   Only those entities entitled to carriage on an open video system may request information
pursuant to Section 76.1503(b)(2).  We first address the issue of whether Time Warner is eligible to obtain
carriage on RCN's open video system.  RCN elected to pursue the open video system option and obtained
certification from the Commission.  Incumbent in RCN's decision are the benefits and responsibilities of open
video system operation as determined by Congress and the Commission.  For example, RCN is not required
to negotiate traditional cable franchises with the communities it serves.  As an open video system operator,
RCN accepted, and is subject to, the obligation to make available on a nondiscriminatory basis up to two-thirds
of its channel capacity to independent programming providers in accordance with the Commission's rules.  The
provision of affording capacity to independent programmers is a fundamental precept of the open video system
option.   

     7.   In its FCC Form 1275 (Certification For Open Video Systems) filing, RCN sought
certification to offer open video system service to the City of Boston, Massachusetts and forty-seven
surrounding Massachusetts communities.  At present, RCN offers open video system service to approximately
3,000 subscribers located within the City of Boston.  Of the remaining forty-seven communities, RCN is
certified to offer service in twelve communities where Time Warner offers cable service.  Time Warner seeks
carriage only in the portion of RCN's open video system service area in which Time Warner is not a cable
franchisee.

     8.   RCN argues that, because Time Warner provides cable service within twelve of the
communities in which it is certified as an open video system operator, Time Warner is a competing in-region
cable operator in RCN's service area.  Time Warner responds that because it does not offer cable service in
Boston, the only community where RCN is actually providing open video system service, it cannot be classified
as a competing, in-region cable operator.

     9.   The Commission specifically considered cable operators' eligibility to seek carriage on open
video systems and adopted Section 76.1503(c)(2)(v)(B).  That Section states that ". . . a competing, in-region
cable operator or its affiliate(s) that offers cable service to subscribers located in the service area of an open
video system shall not be entitled to obtain capacity on such open video system. . . ."  The open video system
rules were intended to enhance competition, with the ultimate goal of providing subscribers with lower rates
and greater programming selections.  To that end, the Commission determined that different treatment of
competing, in-region cable operators better serves the public interest by encouraging competing, in-region cable
operators to develop and upgrade their own systems, rather than occupying capacity on a competing open video
system that could be used by another programming provider.  Should a competing, in-region cable operator
fail to satisfy Section 76.1503(c)(2)(v), it would not be entitled to carriage, and could not, by definition, be
classified as a programming provider entitled to open video system information.

     10.  We agree with Time Warner that it is not a competing, in-region cable operator in this
instance.  The Commission generally excluded competing, in-region cable operators for the reason that such
cable operators' incentive to upgrade and maintain their facilities would be reduced if given the opportunity to
be a programming provider on an open video system serving its franchise area.  This premise is based on the
assumption that the open video system operator is actually serving, or will soon serve, subscribers in the cable
operator's franchise area.  Moreover, the Commission has repeatedly noted the importance of the accessibility
by multiple programming providers, including certain classes of cable operators, to open video systems.  An
incumbent cable operator is a competing, in region cable operator where there is an actual overlap between a
cable operator's franchise area and a specific community served by an open video system operator.  The record
in this proceeding demonstrates that the open video system area in which Time Warner is requesting carriage
does not coincide with any area where Time Warner is serving subscribers as a cable franchisee.  Accordingly,
Time Warner is not a competing, in-region cable operator and therefore is entitled to request carriage as a
programming provider on RCN's system. 

     11.  If an open video system is being activated in stages, as part of its obligations to prospective
programming providers, the Commission's rules mandate that information regarding projected activation dates
be provided upon request to prospective programming providers.  This requirement indicates the
Commission's determination that such information is not commercially sensitive, and is essential to enable
prospective programming providers to assess whether to seek carriage on an open video system.  Notably,
RCN has made no contention, with the necessary support, to demonstrate that the information we order it to
provide to Time Warner is of such character to cause it harm.  RCN has provided no information as to how
it addresses these issues with other programming providers, if there are any.  The open video system envisions
more than one programming provider being able to market services to consumers.  To the extent that RCN
conveys concern about providing information to Time Warner, it faces a similar circumstance with other
prospective programming providers who, while not necessarily cable operators, inevitably have commercial
interests and relationships not directly in concert with RCN.  In light of the foregoing, RCN, at a minimum,
should have responded to the portions of Time Warner's requested information which clearly fell within the
Commission's rules for information that an open video system operator must provide to prospective
programming providers. 

     12.  RCN cites to our rule limiting a competing, in-region cable operator or its affiliates from
gaining open video system carriage, and argues that Time Warner and MediaOne are affiliated through their
common ownership, in whole or in part, by US West, Inc. ("US West").  MediaOne, like Time Warner, does
not offer cable service in any community where RCN is currently serving open video system subscribers.

     13.  According to RCN, US West owns 100% of MediaOne and a 25.51% limited partnership
interest in Time Warner Entertainment Company, L.P. ("Time Warner Entertainment").  Time Warner
Entertainment, a subsidiary of media and entertainment company Time Warner Inc., is the parent company of
Time Warner Cable.  RCN asserts that Time Warner Cable and MediaOne are affiliates under the open video
system regime, and argues that we must consider their combined cable service area in determining Time Warner
Cable's programming provider status.  

     14.    The determination that there must be an actual overlap between a cable operator's franchise
area and a specific community served by an open video system operator to exclude such cable operator from
becoming a programming provider is equally applicable to MediaOne's franchise areas.  Because RCN serves
subscribers in neither Time Warner's nor MediaOne's franchise areas, we need not determine whether Time
Warner and MediaOne are affiliates for purposes of determining Time Warner's eligibility to become a
programming provider on RCN's system.    We conclude that Time Warner is not a competing, in-region
cable operator, and therefore is entitled to the information RCN must provide to eligible programming
providers.  We next turn to the parties' contentions regarding the scope of the information to be provided. 

          B.   Time Warner's Requested Information

     15.  In its orders implementing the open video system framework, the Commission determined that
prospective programming providers may request information pursuant to Section 76.1503(b)(2).  Implicit in
this statement is the Commission's determination that certain entities cannot reasonably be considered
"prospective" programming providers.  For example, a cable operator franchised in an area that an open video
system is serving subscribers and which an open video system operator refuses carriage cannot be considered
a prospective programming provider unless the Commission has determined that carriage of such cable
operator's programming will not impede facilities-based competition.  In addition, we believe that an open video
system operator is not required to respond to nuisance requests for information (i.e., repeated requests by
applicants that have been refused carriage as a result of creditworthiness or similar reasons).  

     16.  Section 76.1503(b)(2) directs an open video system operator to provide to a prospective
programming provider, within five business days of a written request, information relating to the open video
system operator's build-out schedule, estimated carriage rates, programming provider qualification
requirements, and technical interface specifications, unless already provided in the open video system operator's
Notice of Intent to establish an open video system.  The Commission recognized that "a prospective video
programming provider can reasonably be expected to need additional information concerning the system to
assess whether to seek carriage on the system."  Only information that the Commission believes is necessary
to make an "informed" enrollment decision need be provided to prospective programming providers.   

     17.  As part of its request for information, Time Warner requested that RCN provide it with: (1)
a route map showing the exact location of any current RCN open video system facilities; (2) the number of
potential subscribers passed by existing RCN open video system facilities; (3) a route map showing all
anticipated construction, with projected dates for activation of each phase of construction; (4) potential
subscribers to be passed in each phase of construction; and (5) a list of programming which RCN intends to
offer on the 110 channels it has reserved for itself.  RCN challenges the scope of Time Warner's request. 
Time Warner responds that its requested information tracks Section 76.1503(b)(2) and is of the type
contemplated by the Commission.

     18.  Section 76.1503(b) attempts to strike a balance between an open video system operator's need
to protect arguably proprietary information and a prospective programming provider's need to obtain
information necessary to make a carriage request.  The Commission recognized that "the competitive position
of an open video system operator should not be compromised by the required release of information
unnecessary to make an informed enrollment decision," and expressly rejected a proposal that open video
system operators disclose their construction plans.

     19.  As a prospective programming provider, Time Warner is entitled to know which areas within
a community RCN is serving and is projected to serve, if it is activating its open video system in stages, and
when it anticipates offering service to areas that fall under different activation stages.  Information regarding
actual and projected service areas and activation dates comports with Section 76.1503(b)(2), is not
commercially sensitive, and is necessary for a programming provider to decide whether to pursue carriage on
an open video system.  We direct RCN to provide this information to Time Warner as required by the
Commission's rules within five days of release of this order.  We think that a map showing RCN's current and
projected fiber paths, specific construction schedules (beyond mere open video system stage activation), and
lists of RCN open video programming fall outside of the purview of the categories set forth in Section
76.1503(b)(2).  RCN is not obligated to provide this information to Time Warner or any other prospective
programming provider.

     20.  Time Warner also seeks the number of potential subscribers within RCN's existing and
projected service area.  The number of potential subscribers that an open video system seeks to serve in the
future is commercially sensitive.  RCN is not obligated to provide information relating to potential subscribers
in existing and currently unserved areas.  Providing Time Warner with the actual and projected service areas
should suffice.  Time Warner, and other potential programming providers, are as capable as RCN of
calculating the number of potential subscribers in those areas.  To the extent that RCN has provided
information to any other prospective programming provider beyond that ordered herein or that Time Warner
has not expressly requested, we direct RCN to provide such information to Time Warner.

          C.   Revocation of RCN's Certification

     21.  Time Warner urges us to revoke RCN's open video system certification because RCN has no
intention of providing open video system service as described in its open video system certification application
and Notice of Intent, and is merely using its open video system certification as leverage to obtain cable
franchises, or to forestall competition.  In support of its contentions, Time Warner points to comments made
by RCN officials to local authorities regarding its decision to reduce channel capacity from 330 to 110 channels
and its prospects of pursuing cable franchises.  When questioned at an open meeting of local officials
regarding whether RCN's 110 channel open video system would be able to accommodate other programming
providers besides RCN's affiliate, the Vice President and General Manager of RCN answered:"Well, because --
to be very frank with you, we're carrying 110 channels.  We lack the ability."  In addition, when questioned
what RCN would do if a potential programming provider, such as Cablevision, requested 150 channels of
capacity on RCN's open video system, a consultant retained by RCN responded:  "We wouldn't build it.  We
just wouldn't do an [open video system] if that was the case, because we wouldn't be able to compete."  RCN
responds to Time Warner's allegation by stating that less than anticipated carriage demand and financial
considerations have dampened its initial build-out projections.

     22.   Our order today is intended to clarify the scope of an open video system service area as it
pertains to competing, in-region cable operators and the information an open video system operator must
provide to prospective programming providers. In this circumstance, RCN's mistaken interpretation of a
Commission rule is not grounds for revocation of its open video system certification.  While we question certain
of RCN's statements to the Town of Sudbury Selectmen, the record is not adequately developed to address
Time Warner's allegations that RCN does not intend to offer open video system service in its intended service
area.  Should further evidence be submitted to the Commission, we will revisit this issue.  At this time we will
not revoke RCN's open video system certification.

IV.  ORDERING CLAUSES

     23.  Accordingly, IT IS ORDERED that Time Warner Cable's Open Video System Complaint
against RCN-BeCoCom, L.L.C. IS GRANTED as described in this Memorandum Opinion and Order, and
in all other respects denied.

     24.  IT IS FURTHER ORDERED that RCN-BeCoCom, L.L.C. furnish to Time Warner Cable
the Section 76.1503(b)(2) open video system information as further described herein within five days of the
release of this Memorandum Opinion and Order.  Should it contest any aspect of this order, RCN-BeCoCom,
L.L.C. must, within the same five-day period, notify Time Warner and the Commission that it intends to seek
review of this order.
     
     25.  This action is taken pursuant to authority delegated under  0.321 of the Commission's rules,
as amended.

                         FEDERAL COMMUNICATIONS COMMISSION



                         John E. Logan,
                         Acting Chief, Cable Services Bureau